A Door into the Dark; Doing Justice to History in the Courts of the European Union

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(1)EUI Working Papers LAW 2008/11. A Door into the Dark; Doing Justice to History in the Courts of the European Union.. Carole Lyons.

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(3) EUROPEAN UNIVERSITY INSTITUTE. DEPARTMENT OF LAW. A Door into the Dark; Doing Justice to History in the Courts of the European Union CAROLE LYONS. EUI Working Paper LAW No. 2008/11.

(4) This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Law Department of the EUI if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s). ISSN 1725-6739. © 2008 Carole Lyons Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy http://www.eui.eu/ http://cadmus.eui.eu/.

(5) Abstract The European Court of Justice in Luxembourg has been issuing judgments since 1954. It is beyond doubt that this body has, in these judgments, influenced the nature of European integration, indeed the nature of Europe itself, in a far reaching manner. Over the years, this Court has been called upon many times to judge in cases and claims originating in wartime Europe. The first of these occurred in 1975 and there are still, in 2008, several cases rooted in the Second World War awaiting judgment. In other words, the legacy of what happened in Europe between 1933 and 1945 is very much a live, if not very well known, issue before the judges of the European Union. This paper examines how the European Court of Justice responds to wartime based claims and how its jurisprudence deals with the history of the Member States of the EU. It is, in other words a specific analysis of the Vergangenheitsbewältigung (the management of the past) by one institution of the Union. This analysis is framed within an appreciation of the difficulties inherent in confronting memories within the European Union. The Court of the Union is no different in this respect and it emerges as closed and restrained when faced with wartime narratives. This struggle to judicially handle its own history, and the narratives which are unearthed in individual, isolated, modest cases, collectively expose a European Union still very much required to confront the past.. Keywords European Court of Justice - confronting the past - polity building - sovereignty - EU citizenship - identity - Europeanization - national interests..

(6) Table of contents 1. Introduction 2. Processing the past: courts and ghosts 3. Tinker, tailor, soldier, citizen… 3.A Paulin Gillard 3.B Gilbert Even 3.C Albert Hoorn 3.D Josef Baldinger 3.E Tas-Hagen and Tas 4. And we had war 4.A Tamara Vigier 4.B Renzo Tinelli 4.C Gaetano d'Amico 4.D Hartog Cohen 4.E X 4.F Irini Lechouritou 5. Germany, what Germany? 5.A Jozef Van Coile 5.B Goerges Platbrood 5.C Carlo Fossi 6. Vorsprung durch Vergangenheitsbewältigung 6.A Krystyna Zablocka-Weyhermüller 6.B Halina Nerkowska 6.C Irene Werich 6.D Doris Habelt and Martha Moser 6.E VW 7. Concluding remarks 8. Postscript - Lagol Sipur.

(7) A Door into the Dark; Doing Justice to History in the Courts of the European Union Carole Lyons1. All I know is a door into the dark. …The anvil must be somewhere in the centre 2. 1.. Introduction. On Midsummer’s Eve 2007, hours before crucial European Council negotiations on the ‘Reform Treaty’3, the Polish Prime Minister raised a taboo, a rather significant taboo.4 In the pre-negotiation presentation of inviolable positions and ‘red lines’, Mr. Jaroslaw Kaczynski, arguing for increased voting rights for Poland, stated that "We are only demanding one thing, that we get back what was taken from us, adding that "If Poland had not had to live through the years of 1939-45, Poland would today be looking at the demographics of a country of 66 million."5 The “unimaginable injury” which Mr. Kaczynski raised in this blatantly instrumental manner is, to some extent, factually well founded. Poland was the country most affected by civilian and military deaths during the Second World War, losing approximately one fifth of its pre-war population.6 1. 2 3. 4. 5. 6. With many thanks to Christian Joerges, Janet McLean, Bert van Roermund, Neil Walker, Bruno de Witte and Mirjam Bruck-Cohen. The usual disclaimer applies. Seamus Heaney, from ‘The Forge’ in Door into the Dark (London: Faber and Faber, 1969). The German presidency conclusions from the 21/22 June 2007 European Council are at: http:// www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/94932.pdf. The final text of the Treaty, to be known as the Treaty of Lisbon, was agreed on 19 October 2007 and signed in Lisbon on 13 December 2007. Treaty of Lisbon, OJ 2007 C306 and http://consilium.europa.eu/ cms3_fo/showPage.asp?id=1296&lang=en&mode=g. “Poles raise war dead before EU Summit” The Times, 21 June 2007; see also Mark Mardell, 5 July 2007, discussing the ‘Polish Spirit’ at http://www.bbc.co.uk/blogs/thereporters/markmardell/ “Poland is seen as a problem. To put it more crudely, they suffered more than most in World War II but when others gathered round the table to make sure it would never happen again, they were unavoidably delayed. But the Poles are deliberately jabbing at a taboo… Poland was at the centre of the war, but not at the centre of the peace.” “Poles in war of words over voting”, BBC News, 21 June 2007 http://news.bbc.co.uk/1/hi/world/ europe/6227834.stm T. Judt, Postwar (London: Pimlico, 2007) at 18, who adds that this number included “a far higher percentage of the educated population, deliberately targeted for destruction by the Nazis.” However, Poles in glasshouses should perhaps also recall that not all population losses were the result of the Nazis (or indeed of the military forces of the USSR who, for example, executed 23,000 Polish officers in the Katyn forest in 1940). Over 63,000 Polish Jews left Poland for Germany in 1946 because of a series of post-war pogroms in Poland (Judt, (2007) at 24)..

(8) Carole Lyons. However, the awkwardness, embarrassment and general political shuffling of feet with which this interjection was greeted by the other Member State leaders7 gathered in Brussels testified to something more important unraveling here which had little to do with voting rights or the like. The European Union is decidedly uncomfortable with any mention of wartime history, its wartime history, and the Polish outburst led to a general disorientation as the messy past became an interloper in the tightly co-coordinated present.8 The integration pact, hatched in the 1950’s, was fundamentally based on the erosion and obliteration of the effects of the Second World War.9 This new alliance in Europe was to be a cleansed, specifically designed, pre-fabricated entity, sitting not on the bones of 36 million dead Europeans but, instead, upon some imagined, forward looking idea of a new Europe. Indeed, that idea would function only if the onward perspective was maintained and eyes averted from the tragedies of the past. Whatever the Union’s flaws and failures over sixty years it has richly succeeded in maintaining high speed, unceasing forward momentum.10 But the past does not fade away behind a mountain of Directives and Treaties and certainly not a past which includes the Holocaust. Mr. Kaczynski’s reference to wartime history may have embarrassed the other Member States playing polite summit games (and none more perhaps that the host state, Germany) but he exposed a raw core of European integration.11 The ‘prefab’ edifice could not secrete its foundations forever; the European Union in 2008 is inescapably affected and marked by what happened within its Member States between 1933 and 194512 and “for better or for worse the presence of the past is a fact in the construction of Europe”.13. 7. Danish Prime Minister Anders Fogh Rasmussen criticised as “absurd” Poland's linkage of EU voting rights to the country's fatalities in the Second World War. Luxembourg's Prime Minister, Jean-Claude Juncker, called the comments “inappropriate''. A. Neyts, President of European Liberals and Democratic Reform Party, said that “the whole idea of European Union was to do away with consequences of centuries of war and lay foundations for peace and harmony” and that “We believe it is not wise to bring this up again, the EU is about reconciliation of the past. We should look forward to the future, that is the essence of the EU.” 8 “Want it or not, the history of its Member States and of its peoples is Europe’s history… Europe is not only a phenomenon of historical European integration but of an integration of European history.” J.H.H. Weiler, ‘Europe’s Dark Legacy – Reclaiming Nationalism and Patriotism’ in C. Joerges and N. Ghaleigh (eds.) Darker Legacies of Law in Europe (Oxford: Hart, 2003) 389 at 394. 9 See further J. Laughland, The Tainted Source: Undemocratic Origins of the European Idea (London: Little Brown, 1997). 10 U. Haltern, ‘Pathos and Patina; the failure and promise of constitutionalism in the European imagination’ in (2003) 9 ELJ 14 for a critical perspective on this. 11 On 21 October 2007, 4 months after his comments in Brussels, Mr. Kaczynski and his Law and Justice Party were defeated in the Polish general elections: “Polish PM admits election defeat” http:// news.bbc.co.uk/1/hi/world/europe/7054912.stm 12 “The Second World War will never go away. For the Second World War, I believe, remains the foundation of our modern history, the bedrock upon which all our narrative rests - the United Nations, the International Red Cross protocols, international humanitarian law”. Robert Fisk in The Independent, 2 June 2007, http://news.independent.co.uk/fisk/ article2606407.ece 13 C. Joerges, “Constructing Europe in the Shadow of its Pasts’ in C. Joerges and P. Blokker (eds.), Confronting Memories: European “Bitter Experiences” and the Constitutionalisation Process, Special Issue of the German Law Journal (6:2, 2005), 245 at 253.. 2. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(9) A Door into the Dark. Mehr Licht? The Polish protestations were all the more marked because 2007 was the 50th anniversary of the Treaty of Rome, of European integration and of all the ‘closeness’ between Member States that that is supposed to have engendered. In Brussels, the hometown of the Union, they turned on the lights – literally. Installed in the Rond Point was a celebratory interactive light sculpture entitled ‘Mehr Licht/More Light’.14 A clever and resonant title for a work of art which had a more than literal significance in many ways for the EU. The Treaty of Rome established a community of states and their peoples and a supranational entity of unknown potential and unlimited duration. The extent to which that process incorporates a concern for the relationship between the European ‘community’ (in the wider sense15) and its own past or pasts is the preoccupation of this paper. It is a process which generally permits with very little space for reflection on the past.16. It is, however, very clear that political matters rooted in the pre-history of the EU are still prevalent. In Europe generally, there has been a marked rise in anti-Semitic attacks and right-wing extremism in many states of the EU in recent years.17 In the EU, Romania and Bulgaria’s new membership was accompanied by the formation of ‘Identity, Tradition and Sovereignty’, the new far-right grouping in the European Parliament.18 The members include anti-Semitic parties and Jean Marie le Pen as well as other members of the French Front National who, until now, did not have a political grouping in the EP. In early 2007 also, the European Parliament reported on the passivity of many of the EU’s Member States in the face of illegal CIA operations in Europe. According to the Report, European countries have been "turning a blind eye" to flights operated by the CIA which, "on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees."19 Against this background, the ‘old’ Member States, with their particular history and influence, seek to engender a constitutionally based sense of tolerance20 and forbearance for the Union 14. ‘Mehr Licht’’, allegedly the last words uttered by J. W. Goethe. For more on the installation by Anny und Sibel Öztürk see: http://www.eu2007.de/en/News/Press_Releases/January/0116AALichtring2.html 15 In fact, the Community in the narrow sense (that is the legal entity of the European Community) ceases to exist anyway after the ratification of the Lisbon Treaty, which renames the EC Treaty as ‘The Treaty on the Functioning of the European Union’: “Article 2, 2) The title of the Treaty shall be replaced by "Treaty on the Functioning of the European Union". 16 Arguably, the Lisbon/Reform Treaty process has (apart from the Polish intervention) engendered even less contemplation of the past than did the Convention Process leading up to the 2004 Constitutional Treaty. The Lisbon Treaty proposes the following changes to the Preamble of the Treaty on European Union at Article I which make no reference to experiences of the past, bitter or otherwise. “Preamble, 1) The preamble shall be amended as follows: (a) the following text shall be inserted as the second recital: "DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person,freedom, democracy, equality and the rule of law". 17 “Anti-Semitic attacks at record level.” Reuters, February 1, 2007 http://uk.reuters.com/article/ topNews/idUKL0185094420070201 18 The group’s Constitutive Charter is available at: http://www.its-pe.eu/ The Guardian, 8 January 2007, ‘Romania's first gift to the European Union - a caucus of neo-fascists and Holocaust deniers’ http://www.guardian.co.uk/eu/story/0,,1984947,00.html. 19 http://www.europarl.europa.eu/comparl/tempcom/tdip/default_en.htm Final Report, 30 January 2007, of the European Parliament’s Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners. 20 The Berlin Declaration of 26 March 2007, marking the 50th anniversary of integration is available at. EUI WP LAW 2008/11 © 2008 Carole Lyons. 3.

(10) Carole Lyons. despite the presence of far-right thinking within the Union’s own institutions. This is Europe’s ‘heart of darkness’, its own history, with which the bureaucratic integration project has never fully engaged. The extensive efforts by Christian Joerges and other in this field have shown to what extent the EU has an institutionalized embarrassment as regards that past.21 An invocation to remember In 2003, Joerges and his colleagues broke a veritable cartel of silence22 surrounding the subject of the relationship between the study of European integration and what had happened in Europe between 1933 and 1945.23 From now on, it is unimaginable that European Union law or politics could be taught without proper recall of what passes now under the byword of the ‘Darker Legacies’ project. This shattering of the ‘communicative silence’24 surrounding the contemporary relevance of the Holocaust and the Second World War is an invaluable contribution to the enrichment of European Union studies. Joerges et al were not afraid to pose large questions for fear of obtaining only small answers25 and in doing so they have opened up the possibility of a far deeper understanding of the pasts of Europe. No longer can there be a valid excuse for a hurry through the first one or two lectures when some rapid, dehistoricised interpretation of the origins of integration is launched upon students. This process of Europeanising the ‘dark legacy’26 is in its infancy but has the potential to fundamentally transform future approaches to EU studies. It was, partially, the process leading to the Constitutional Treaty of 2004 which led to Joerges and others donning an historically reflective hat as if that key moment in Union history gave cause and necessity for reflection on the submerged pasts. The importance of this “constitutionalising moment” within European integration was its perception as a response to “the sum of the atrocities of the twentieth http://www.europa.eu/50/docs/berlin_declaration_en.pdf. It was preceded by a speech by Angela Merkel, Germany’s Prime Minister, to the European Parliament on 17 January 2007 when she declared that “Europe's soul is tolerance and that Europe is the continent of tolerance.” http://www.eu2007.de/en/News/ Speeches_Interviews/January/Rede_Bundeskanzlerin2.html. 21 In 1996, in A Critical Introduction to European Law (London: Butterworths, 1996), Ian Ward highlighted the extent to which this deficit of historical appreciation is mirrored in academic analysis of European Union law; “Perhaps because of its relative newness, or perhaps simply because law is too often considered to be a historical entity, it is too easily forgotten that the law and constitution of the European Union is unavoidably historical, and, moreover, should be studied as such. Textbooks on European law are… conspicuously unhistorical. The history of the Union is not taken very seriously at all. This is a regrettable mistake… The law-history-politics nexus is irreducible. To ignore it is, truly, to be ignorant. The law of the European Union is a politics, and any politics is a history.” 22 M. Stolleis, ‘Reluctance to glance in the mirror: the changing face of German jurisprudence after 1933 and post-1945’ in Joerges and Ghaleigh (eds.) Darker Legacies of Law in Europe, (Oxford; Hart, 2003) p. 16. 23 C. Joerges and N. Ghaleigh (eds.) Darker Legacies of Law in Europe, (Oxford: Hart, 2003). 24 M. Stolleis, ‘Reluctance to glance in the mirror: the changing face of German jurisprudence after 1933 and post-1945’ in Joerges and Ghaleigh (eds.) Darker Legacies of Law in Europe, (2003, Hart, Oxford) 16. 25 Claude Lanzmann speaks of this fear in the making of Shoah (1985): Stuart Liebman, ‘An Introduction to Claude Lanzmann’s Shoah’ in Claude Lanzmann’s Shoah: Key Essays, S. Liebman (ed.) (Oxford: OUP 2007). 26 J.H.H. Weiler (2003), noted above, at 395.. 4. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(11) A Door into the Dark. century in general, and the persecution and extermination of European Jews in particular.”27 The ‘Constitution’ itself is now history or almost28, and in the shadow of all the lost momentum and the minor institutional trauma of the failure of a controversial but fundamental step for the EU, I turn, in this paper, towards the past as it quietly unrolls outside of the political arena. The analysis is based on the judicial reception of history against the background of the work of Joerges and others who created this potential to explore the “Darker legacies” of Europe.29 Those latter endeavors focused largely on a theoretical appreciation of how the EU is influenced by, and works through, its pasts. This paper specifically responds to this opening up of the ‘lost’ history of the European Union with a focus on judicial praxis, through the tracing of shadows from the past which lie within the case reports. Adopting an openness to the darker legacy does not have to mean a generalised wallowing in guilt or shame but a recognition of the fact that, as Joerges points out, “this legacy is not merely precious, it is also precarious.”30 The management of Europe’s past(s)31(the Vergangenheitsbewältigung32) is not a duty falling to one or two Member States but is a generalised responsibility. One unpredictable outcome of a lengthy reflection on the nature of the legacy is that questions of German accountability have been brought into a European context33. The Polish Prime Minister, in Brussels in June 2007, may have been attempting to do something similar in a rather crude manner. The analysis in this paper also testifies to the continuing presence of the awkward and sensitive issue of German responsibility. Tracing through the chthonic layer of European integration, modest, half hidden stories of those who lived through war are revealed, exposing the way in which the past is judicially filtered within the Union. Moreover, what is revealed is not merely the past but a present which still lives with an unresolved past. Bitter experiences and Darker Legacies Both of these terms have been used in the influential work of Joerges in his exploration of how Europe may work though, and with, its pasts. In this emergent discrete field of 27. C. Joerges, ‘Introduction to the Special Issue: Confronting Memories: European “Bitter Experiences” and the Constitutionalization Process: Constructing Europe in the Shadow of its Pasts’, Confronting Memories (2005) 6 GLJ 245 at 246. 28 On 19 October 2007, the Lisbon Treaty was agreed, putting an end to what was categorized dismissively as a “phase of institutional navel gazing” by José Manuel Barroso, the President of the European Commission. 29 C.Joerges and N. Ghaleigh (eds.) (2003). 30 C. Joerges in C.Joerges and P. Blokker (eds.) (2005) 6 GLJ 245 at 246. 31 See Christian Joerges on this: “Was bedeutet: Aufarbeitung der Vergangenheit” is the title of a famous essay by Theodor W. Adorno, written in 1959, in which he took issue with what the Germans have coined “Vergangenheitsbewältigung”: How can Germans ever “come to terms” with Auschwitz – “Vergangenheitsbewältigung” is definitely and rightfully resistant against/to translation exercises.” C. Joerges, ‘Constructing Europe in the Shadow of its Pasts’ in C. Joerges and P. Blokker (eds.), Confronting Memories: European “Bitter Experiences” and the Constitutionalisation Process, (2005) 6 GLJ Special Issue 245 at 248. 32 The process of dealing with the past (Vergangenheit = past; Bewältigung = management, coming to terms with or mastering), which roughly translates as ‘a struggle to come to terms with the past’. 33 Exchanges with Christian Joerges, August 2007.. EUI WP LAW 2008/11 © 2008 Carole Lyons. 5.

(12) Carole Lyons. the analysis of history and the EU, these phrases have become easily recognizable terms of art which permit easy reference and furtherance of the discussion. However, what precisely lies behind these terms it is not always made explicit. This is understandable; even in the case of the origins of ‘bitter experiences’ in the Polish Constitution of 199734 a certain amount of necessary euphemism prevails. In the case of the ‘Dark Legacy’ an actual definition or description is clearly avoided but it is obvious that those writing in the field maintain their own perceptions of what that legacy constitutes. Despite the lack of a direct spelling out of the nature of the legacy there is a clear consensus that the Holocaust and National Socialism is what is largely understood when the ‘darker legacy’ is referred to. Thirty six million people died in Europe during the course of the Second World War. In other words the darkness of the legacy behind integration in Europe is at it most intense and horror full when we consider the Holocaust but the war generally had a very wide ranging impact in Europe as a whole.35 In a reasonable desire not to actually enter the heart of this legacy, writers in the field may not always explicitly distinguish between war and Shoah and the latter is at times used as a false but convenient point of reference for both. In this paper I explicitly explore cases which evolve from the lesser tragedy behind the horror of the Holocaust, namely that of people trying to live their lives as normally as possible, negotiating the hardship of the war in very different ways and to very different degrees, and largely ignoring or untouched by the terrible reality of the National Socialist ‘final solution’. There are cases discussed in this paper which concern events of the war in a very direct fashion, such as the 1943 Kalavrita massacre,36 but in large part the narratives emerging from the case studies are those of ordinary Europeans with diverse and not necessarily always ‘bitter’ experiences of the Second World War. Indeed, this examination reveals how ambiguous (rather than necessarily horror full) wartime was from the individual point of view, and this very ambiguity has to be remembered if Europe as whole (and not just Germany) is to confront its pasts. In the Postscript, I do deliberately discuss how Shoah and the Jewish experience of the Second World War are very close to the surface of ordinary wartime. But, for the most part, the 'dark' of this paper is largely the darkness of everyday twilight rather than that of the empire of evil.37 The past as present before the Court The question of how to confront the past is not a luxury afforded at the judicial level; here the past itself directly confronts the EU and, for the judges, there is no avoiding the memories of the survivors of the 1943 massacre in Kalavrita, or of slave laborers from. 34. “Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland…” Preamble to the Polish Constitution, http://www.sejm.gov.pl/prawo/ konst/angielski/kon1.htm or http://www.servat.unibe.ch/law/icl/ pl00000_ html. 35 The role of the Allied Forces in the large scale destruction of German cities is largely ignored in this context, permitting an undoubtedly skewed perception of innocence and guilt in the context of darker legacies in Europe. Six hundred thousand German civilians died in the bombing of 131 towns and cities yet an “ominous silence” prevails on this subject. See W. G. Sebald, On the Natural History of Destruction (London: Hamish Hamilton, 2003). 36 Case C-292/05 Lechouritou and others v Germany, [2007] ECR I-1519. 37 With many thanks to Bert van Roermund.. 6. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(13) A Door into the Dark. Belgium or the nature of the legislation which kept the volks wagon German38. The pasts which seep through in the analysis are those of ordinary people (typists, miners, factory workers, farmers…), ordinary Europeans caught up in an extraordinary situation without parallel, men and women with lives rocked by the vagaries of war and whose stories would have remained buried and unknown but for the accident of Article 234 of the EC Treaty.39 Examining the extent to which history infiltrates the EU by means of the judicial process reveals a Union facing issues from its past on a surprisingly frequent basis. Furthermore, while the substantive links in the case studies are all with the wartime past, the judicial resolution of these cases is very current. In December 2006 for example, the Court received Halina Nerkowska’s preliminary ruling case, explicitly raising the link between Citizenship and Article 18 EC and a wartime based claim.40 The case of Irene Werich, lodged at Luxembourg in February 200641 raises the compatibility of free movement of persons principles with regulations on pension contributions made under the laws of The Reich. In December 2007, in the cases of Doris Habelt and Martha Moser, the European Court of Justice judges were faced with the legacy of the occupation of the Sudetenland, that quarrel in a far away country still haunting Europe.42 The continuing and contemporary relevance of this dissection of the past is clearly established; the past is the reference point but the analysis is not solely an historical enquiry. The EU might aspire, in the name of its citizens, to a non-fixed future, one where all possibilities are open in a never ending integration process. Despite that, the EU will forever, inexorably, be fixed by what happened during the Second World War. Fixed because the culture of rights which underpins modern Europe is based on what happened between 1933 and 1945. Fixed because wartime and its consequences are in the hearts and minds of many EU citizens.43 Fixed, finally, because like a wartime diary discovered in a lost box in an attic44 the past cannot be suppressed and obliterated; 38. These are just some indicative facts from the cases examined in this paper. Article 234 EC Treaty, which establishes the preliminary ruling mechanism for the purposes of referral of cases from Member State courts to the European Court of Justice. 40 Reference for a preliminary ruling from the Sąd Okręgowy w Koszalinie (Poland) lodged on 8 December 2006, Halina Nerkowska v Zakład Ubezpieczeń Społecznych, Case C-499/06. 41 Reference for a preliminary ruling from the Sozialgericht Berlin lodged on 24 February 2006, Irene Werich v Deutsche Rentenversicherung Bund, Case C-111/06.. 39. 42. Joined cases C 396/05, C 419/05 and C 450/05 Doris Habelt, Martha Möser, Peter Wachter v Deutsche Rentenversicherung Bund, Opinion of Advocate General Trstenjak, 28 June 2007 and judgment of the European Court of Justice, nyr, 18 December 2007. 43 2007 saw the publication of Günter Grass’s Peeling the Onion (London: Harvill Secker, 2007), a confessional account of his time as member of the Waffen SS during the Second World War. Norman Mailer also published Castle in the Forest in 2007 (London: Random House, 2007), a novel based on Hitler’s youth and childhood. On 27 June 2007, both Mailer and Grass were interviewed at an event entitled ‘The Twentieth Century on Trial’ at the New York Public Library: http://www.nypl.org/ research/chss/pep/pepdesc.cfm?id=2678. Claude Lanzmann’s ‘Shoah’ (1985) was reissued on DVD in 2007 accompanied by Claude Lanzmann’s Shoah: Key Essays, S. Liebman (ed.) (Oxford: OUP, 2007). More generally, the widespread and emotive commemoration of Remembrance Day (11 November) in some EU Member States and of Holocaust Memorial Day (27 January) testifies to a real sense of shared respect for the past, for the destruction of European Judaism and for all those who suffered in European wars. 44 The Diary of Petr Ginz, C. Pressburger (ed.) (London: Atlantic Books, 2007) (the wartime diary of a Jewish teenager, who died in Auschwitz, discovered in an attic in Prague in 2003).. EUI WP LAW 2008/11 © 2008 Carole Lyons. 7.

(14) Carole Lyons. everything the EU does is ultimately done in the pale but “persistent shadow of Auschwitz”.45. Part 2 of this paper introduces wartime46 based case law before the European Court of Justice, exposing the extent to which Europeans bring their wartime memories and issues to Luxembourg and the relationship between their cases and the development of Community law. It is an examination which shows how, in an historically averse Europe, a fragmented and extended reconciliation process has taken place before the judges. In Part 3, the connections between war cases and EU citizenship are analysed. This analysis traces a trajectory where the developing concept of EU citizenship has proven to be the surprising salvation of some wartime claimants before the Court, albeit only in most recent times. Part 4 focuses on a collection of cases where the legacy of the Second World War is very must to the fore, thus providing the ‘hard evidence’ of the EU’s acquis historique communautaire 47. Part 5 examines European Court of Justice case law which has been confronted with the reality and ramifications of the divided history of Germany. Finally, in Part 6, I examine current and on going case law with a wartime dimension, demonstrating that, despite political desires to put it all behind us48, the war continues to be mentioned in Luxembourg. The paper closes with a Postscript which aims to show how the people, the ordinary individuals, behind all these cases, each and every one of them, tells and re-tells the story of modern Europe.. 2.. Processing the past; courts and ghosts Old oars and posts Over the years Harden their grain, Incarcerate ghosts 49. The dilemma is rendered crystal clear by Weiler; when exploring the subject of the ‘dark legacy’ is it possible to “have a non-instrumental approach to the subject?”50 Can the issue of the Holocaust or the Second World War ever be raised without a specific end point or purpose? This conundrum is heightened when the focus of the research is the responses of the judges of the European Court of Justice to the legacy of war. What purpose or end can be served by revealing the trail of wartime cases before the Court and the various phases of reactions from generations of judges? This Court is obviously no stranger to controversy and criticism; indeed, they have both inexorably accompanied the Court’s development for over forty years. But what is achieved by 45. F. Larat, ‘Present-ing the Past: Political Narratives on European History and the Justification of EU Integration’ in C.Joerges and P.Bokker (eds.) Confronting Memories (2005) 6 GLJ 273 at 284. 46 Throughout this paper the use of ‘wartime’ refers to The Second World War only. 47 F. Larat, noted above, at 288. 48 A reference to the other Member State responses to the Polish comments on 21 June 2007. 49 From ‘Relic of Memory’, S. Heaney, Door into the Dark, (London: Faber and Faber, 1969). 50 J. H.H. Weiler (2003) in C. Joerges and N. Ghaleigh (eds.) Darker Legacies (2003) at 391.. 8. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(15) A Door into the Dark. highlighting the perceived failures or weaknesses of the Community judiciary when the aim is to explore the presence of the past within the Union? As the analysis in this paper seeks to demonstrate, the judges have been very frequent recipients of the burden of wartime history. However, to focus only on judicial reluctance to face the past, and arguably poor decisions as a result, diverts the discussion away from the real substance, namely, the narratives of those who experienced war and who are still seeking a related resolution. From 1975 until 2006, every case before the European Court of Justice involving a wartime claimant was unsuccessful in terms of a positive resolution from the claimant’s perspective. However, a non-instrumental exploration of the past(s) is the primary objective of this paper and not emotionally charged, moralistic appreciation of the Court’s decisions. This analysis here is, therefore, influenced by but does not follow precisely the insightful path set by Vivian Curran in her examination of the methodology and approaches of the French and German judges during the Second World War.51 As she shows us, these judges, with different methodologies, shared and embraced the laws and policies of Vichy and The Reich so as to serve the state fully. A clear distinction must be drawn when it comes to the Luxembourg courts though; the judges there, facing wartime matters, are normally several steps removed from the factual origins of the claims, chronologically, procedurally and institutionally. The events, if not the consequences, are in the past, a past which did not know supranational law, and the legal basis for the claims is usually clearly rooted in the law of a Member State, with the result that the degree of proximity between the judge and past s/he is required to face is low. Luxembourg judges confronted with wartime are not directly part of ‘the system’ in the manner of Reich or Vichy judiciary. This is why, in as much as it has been possible, what follows in this paper is a presentation of the past, a recounting of the “bitter experiences” of ordinary Europeans without too much judging of the judges. However, the judges of the Court of Justice are not completely exempt from analysis and criticism of their role in this framework. It is a common place, as ever law student on exam induced auto-pilot knows, that these judges been often ‘accused’ of being overly judicially active in the past, allegedly far exceeding the interpretative role of judges.52 It is difficult if not impossible, in 2008, with 61 judges and an extremely diverse and varied body of jurisprudence, to ‘capture’ and categorise the overall nature of judging emanating from Luxembourg. It is, none the less, clear that the judges of the European Court of Justice do have some level of judicial responsibility in relation to the past, a responsibility which arguably exceeds that of their wartime predecessors. The Third Reich and Vichy judges cannot ever be excused their shameful role but the judges in Luxembourg know the reality of the past and they bring that hindsight and knowledge with them to every case where they face the Union’s history and individual wartime experiences.. 51. V. Curran, ‘Formalism and anti-Formalism in French and German Judicial Methodology’ in C. Joerges and N. Ghaleigh (eds.) Darker Legacies (2003) at 205. 52 P. Craig and G. de Búrca, EU Law (Oxford: OUP, 2007), pp. 72 – 76, on the role of the Court. For a more general reflection on the role of judges see L. Claus ‘Montesquieu’s mistake and the true meaning of separation’ (2005) OJLS pp. 419 – 451, where the whole basis of the theory of the rule of law and the separation of powers is exposed as being based on an erroneous understanding by Montesquieu of the role of the English judge whose ‘judicial power’ he underestimated considerably and therefore did not appreciate the extensive common law interpretative powers of English judges and the extent to which they did make law.. EUI WP LAW 2008/11 © 2008 Carole Lyons. 9.

(16) Carole Lyons. This investigation into the lingering reality of wartime within the Union has involved the location of the enduring traces of the past within the core of the judicial architecture of European integration. The research has revealed that these cases occupy a very quiet space within the European judicial environment, one largely untouched and unaffected by major developments in Community law such as fundamental freedoms, human rights and citizenship. This trend, towards the judicial marginalisation of wartime based claims, is observable even in 2007.53 Furthermore, the sense of the subsidiary importance of wartime cases extends to the academy; very few of the judgments discussed here have merited a published response from those whose vocation it is to critically observe the EU. This neglect might be understood if it were simply one or two pensioners with petty claims but there is a significant body of case law involving claimants with cases rooted in wartime. There are many ways in which EU citizens (can) participate in the life of the Union; any such participation establishes a real connection with the polity - you cannot easily detach yourself from the mark you place on a voting sheet or a court case in your name. In the wartime cases, Europeans with memories establish their personal link with a political entity that that had no life at the time of the origin of those memories. But reciprocity of some sort is necessary for that connection to be in any way meaningful. As Vivian Curran has remarked about judging in another context, “If history has made one case compellingly clear it is that we depend on the right judges being in the right place at the right time and on their courage and vision.”54 The task of adjudicating memories reveals that memory and justice are at times ill served by European Union law. All of the cases examined in this paper, isolated though they are from each other, together constitute a collective picture of a claim to belong, a claim to connect, to further a sense of community by a now fragmented community that was once united through the experience of war. The entrusting of their narratives and experiences, often deeply personal, to the Court of Justice is, in itself, the establishment of an integrative force which links these individual citizens with the European Union and so contributes to the formation of a community, one based on trust in the nature of European justice and on the belief that history can be remedied and rectified in this forum. One could argue generally that all who go to court in Europe55 constitute such an integrative force or community as each case contributes to the building up of the layers of integration and adds to the nature and extent of the EU legal order. However, the cases which evoke the past, which are grounded in the very raison d’être of European integration, do this in a more marked fashion; at one and the same time they do not permit the EU to forget the very foundations of the entire entity and they call, persistently and consistently, for recognition of those foundations and for a modicum and means of reconciliation and remembering. Each case explicitly entreats the European Court of Justice for an EU level remedy and each case thus asserts the sense that the EU has this responsibility, this inchoate obligation. The Court may have, many times over the years, washed its hands 53. For example, the lack of any reference to human rights by the European Court of Justice in Case C295/05 Lechouritou, a case where alleged crimes against humanity by the armed forces of The Third Reich were raised by the claimants. 54 V. Curran ‘Law's Past and Europe's Future’ in C.Joerges and P. Blokker (eds.) Confronting Memories (2005) 6 GLJ 483 at 512. 55 C. Harding, 'Who Goes to Court in Europe? An Analysis of Litigation against the European Community' (1992) 17 ELRev. 105.. 10. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(17) A Door into the Dark. of this unwritten duty by claiming that war was a matter for the Member States but the case studies in this paper show that Luxembourg’s bailiwick is not so easily closed off to war tainted cases. The Member States went to war as sovereign states; the supranational solution they fashioned after Auschwitz may have seemed to be immune from the misdeeds of wartime, the Community drawing a convenient line under the pasts. However, the persistent and repeated claims at EU level expose a fundamental gap in this regard; judicial resolution was either not forthcoming or possible at Member State level and resort was had, of necessity, to the EU. The cases thus all tacitly suggest that the EU embrace an as yet undefined level of responsibility for a past with which, on a formal and juridical level, it has no connection. The manner in which the past is received by the Court in the case law examined here can be seen as being parsimoniously restrictive. In the case of Jozef van Coile 56for example, we obtain from the case report only the smallest glimpse into the reality of one person’s Second World War story; with no detail as to his ‘work’ (that is, forced labour) for Siemens is explored by the Court. This is frustrating from a historical perspective and reflects a pattern seen in all of the other case studies. Of course, European Court of Justice is not an historical archive; it has no function or role in relation to a past which not only preceded its inception but a past with which it, as part of the design of a new Europe, was not concerned. But the Court is repeatedly, by default, made into a site or realm of memory57 and specifically the memory of the impact of the Second World War. It has become a valuable source of partially preserved, if instrumentally presented, memories of wartime affected Europeans. These pensioners, ex-coal miners, soldiers and resistance fighters, from the whole spectrum of wartime alliances, may never have wished or had occasion to formally record their individual stories in any other context. Now, though, like Jozef van Coile, their testimony is forever preserved (if only in minute and veiled form) in the formal arena of the jurisprudence of one of the most significant judicial bodies in Europe. This Court is indirectly given privileged access to a set of memories that may never be available elsewhere. The EU judges are, therefore, the recipients and guardians of a memory beyond the monument58 - all the more valuable because of the small scale nature of the narratives which are seemingly treated as unimportant by all concerned in these cases, including the claimants themselves. None of these people’s stories would have come to light were it not for their cases before the courts of the EU. Each person who has presented before the judges in Luxembourg with a claim rooted in a wartime event is an EU citizen with an important, individual history which potentially informs and deepens the contemporary meaning of that concept. What does it mean (over and above mere words in the EC Treaty) to be an EU citizen? One response is that it signifies a collectivity united in its sense of a traumatized past and the need to be constantly aware of that past in order to form a new, positive sense of Europeaness. Since its inception, many have bemoaned the impossibility of a well functioning concept of supranational citizenship on the basis of a. 56. Case C-442/97 Jozef van Coile v Rijksdienst voor Pensioenen [1999] ECR I-8093. See further, The Work of Memory, A. Confino and P. Fritzsche (eds.) (Urbana/Chicago: University of Illinois Press, 2002). 58 Ibid. p. 3, “This volume seeks to take memory out of the museum and beyond the monument, into the wider field of social relations, beyond an indication of inadequate moral confrontation.”. 57. EUI WP LAW 2008/11 © 2008 Carole Lyons. 11.

(18) Carole Lyons. comparison with its national counterpart.59 Yet, and we do not need the small voices of pensioners in Luxembourg courts to remind us of this, EU citizens share a very specific past which ties them inexorably in terms of responsibility, culpability and the need for radical reformation in a way in which shared national history does not, in a way in which say, US citizenship, never will. The events of the Holocaust and the Second World War unite Europeans and connect us in a very particular European way. All EU Member States were involved in some manner in the events which unrolled between 1933 and 1945; from the Irish president Éamon de Valera in ‘smugly neutral’60 Ireland offering condolences to the German representative in Dublin after Hitler’s suicide in 194561, to the Dutch judges who colluded with German enforced law62, to the thousands of Jewish children deported from France,63 to the Polish farmers who made cut throat gestures to the occupants of crowded rail trucks passing by on their way to Sobibor and Treblinka.64 This is our collective past – and our collective wound - as Europeans. This has to directly contribute to any well formed concept of EU citizenry, for no European can ever say they are not culpable, they were not implicated, they are not touched by this shared past. The Luxembourg judiciary is exposed to these cases laden with memories, ambiguities and unresolved issues. Court rooms from Nuremberg to Jerusalem65 have, over the years since the war, faced the unraveling of the legacy of National Socialism but they have been confronted with the guilty and the infamous.66 It has, ironically, fallen to a judicial forum with no inherent concept of ‘victim hood’67 to serve as the adjudicator for some of the innocent and the unknown. These modest cases bring us into vicarious contact with victims, their experiences and with the war itself; with executions in a Greek village, with a young soldier on the Eastern Front, with the dangers of being in the Dutch resistance, with Hitler opening the VW factory. Like Roland Barthes, looking on a photograph of Napoleon’s brother and realising with amazement that he was “looking. 59. For a recent analysis see D. Kostakopoulou, ‘European Union Citizenship – Writing the Future’ (2007) 13 ELJ 623. 60 T. Judt, Postwar (2007), not on Ireland but on Austria: “Austria embodied all the slightly self-satisfied attributes of post-war western Europe…[remaining] smugly neutral”, at p. 2. 61 On the role of Ireland generally during the Second World War see C. Wills, That Neutral Island - a cultural history of Ireland during the Second World War (London: Faber and Faber, 2007). 62 T. Mertens, ‘Continuity or Discontinuity of Law? David Fraser’s Law after Auschwitz: Towards a Jurisprudence of the Holocaust (2007) 8 GLJ 533. 63 Around 11,000 children were deported to extermination camps from France. See generally, S. Klarsfeld, French Children of the Holocaust: A Memorial, (New York: New York University Press, 1997). 64 Shoah (1985) Disc 1, Scenes 21, 36 – 38, 40; “Czeslaw Borowi laughs as he recalls making the throatslitting sign” (scene 40), as discussed in Claude Lanzmann’s Shoah: Key Essays, S. Liebman (ed.) (Oxford: OUP (2007). 65 H. Arendt, Eichmann in Jerusalem: A report on the banality of evil (London: Faber, 1963) and T. Mertens, ‘The Eichmann Trial: Hannah Arendt’s View on the Jerusalem Court’s Competence’ in C.Joerges and P.Blokker (eds.) Confronting Memories (2005) 6 GLJ 407. 66 This high profile focus on Eichmann et al can divert attention from the sufferings of their victims. 67 The ECHR system is based on ‘victims’ and it has dealt with many wartime based case law over many years. See, for example, P. Macklem, ‘Rybná 9, Praha 1: Restitution and memory in international human rights law.’ (2005) 16 EJIL 1.. 12. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(19) A Door into the Dark. at the eyes that looked at the Emperor”,68 we are able to ‘see’ Europe’s history, that which constitutes its collective memory.69 As Joerges reminds us, ‘there is knowledge available’;70 this paper uncovers some of that knowledge and exposes a small and ignored seam of EU judicial history.. 3.. Tinker, tailor, soldier, citizen…71 Though you walked a straight line It might be a circle you traveled 72. This part of the paper is directed towards the relationship between the past and citizenship, an issue which “brings law and history and law and bitter memories so intimately together”.73 At the time of the Maastricht Treaty, the EU74 gifted a citizenship without real substance and the development of the concept has been almost wholly in the hands of the judges ever since.75 Over time, the “transformative potential” of European citizenship has emerged as the judges have moved it “from the margins to the centre and it has acquired specificity, substance and increasing complexity.”76 The 68. R. Barthes, Camera Lucida (London: Vintage, 1993) at 3. He continues, “Sometimes I would mention this amazement, but since no one seemed to share it, nor even to understand it (life consists of these little touches of solitude), I forgot about it.” 69 S.J. Wiesen, in The Work of Memory, A. Confino and P. Fritzsche (eds.) (2002) at 198, “In employing the concept of "collective memory", I am drawing upon the work of French sociologist and Durkheim protégé Maurice Halbwachs. Halbwachs articulated memory as conscious, collective, and purposeful. Rather than being a passive, individual phenomenon, memory instead is located within a web of social and performative practices. For Halbwachs, private memories are, in fact, ephemeral and have no lasting life outside the group context. Memory is always embedded in a network of power relations, customs, traditions, and symbols. A group—in this case German industry—sustains itself by manipulating the images of the past for present purposes, and an individual's personal memories are mediated by broader group narratives. According to Halbwachs, therefore, memory is more appropriately seen as "commemoration"—an exercise of collective agency and rational choice, albeit always constrained by sociohistorical realities.” 70 C. Joerges ‘Europe a Großraum? Shifting legal conceptualizations of the integration project’ in C. Joerges and N. Ghaleigh (eds.) Darker Legacies (2003) 167 at 168. 71 A traditional children's fortune-telling rhyme used when skipping, for example, the fuller version of which reads: Tinker, tailor, soldier, sailor, rich man, poor man, beggar-man, thief. 72 S. Heaney, from ‘The Plantation’, Door into the Dark (London: Faber and Faber, 1969). 73 C. Joerges, ‘Working through ‘bitter experiences’ towards a purified European Identity? A critique of the disregard for history in European constitutional theory and practice’ (2006) in Law and Democracy in the Post-National Union, E. O. Eriksen, C. Joerges and F. Rödl (eds.) ARENA REPORT 1/2006 335 at 358. 74 Articles 17 – 20 EC Treaty on EU Citizenship were introduced at the time of the Treaty on European Union. 75 See P. Craig and G. de Búrca, EU Law (2007, OUP, Oxford), chapter 23, for a discussion of the judicial development of EU citizenship and also F. Jacobs, ‘Citizenship of the European Union – a legal analysis.’ (2007) 13 ELJ 591 – 610. 76 D. Kostakopoulou, (2007) 13 ELJ ‘European Union Citizenship: writing the future’ pp. 623 at p. 635.. EUI WP LAW 2008/11 © 2008 Carole Lyons. 13.

(20) Carole Lyons. relationship between wartime claimants and this citizenship may seem remote initially and hard to envisage. However, in a surprising move in 2006, in the case of TasHagen,77 in the first successful judgment78 involving wartime claimants, the Court used citizenship to find in favour of the claims of two Dutch nationals whose case was rooted in Second World War related legislation. Up until this point, any hint of a connection between EU citizenship law and wartime narratives had been ignored by the European Court of Justice. The dismissal of citizenship arguments, and the resultant distancing of the individual citizens involved, was most marked in the case of Josef Baldinger.79 It was as if the “destiny” of EU citizens foretold in Grzelczyk 80 would be confined to those who presented with shiny futures and not messy pasts. For many years before Baldinger of course, the ECJ was “confronted with a particular for which the general did not (yet) exist”81 as the concept of supranational citizenship had yet to be conceived. Even so, before Article 17 EC, fundamental free movement of persons provisions were also largely ignored by the Court in wartime cases and either Member State provisions or Community secondary legislation were prioritised. In this context, the EU could be accused of giving with the large print but taking away with the small print.82 The European Court of Justice, when it considers and assesses EU citizenship, looks resolutely forwards and not backwards.83 Thus, the commonality of the past, the specific wartime past, and the extent to which it forms, and ought to form, a sense of shared ‘belonging’ or connection is simply not envisaged as part of the future. The crux of EU citizenship, as judicially developed, is its potential and its promise and not its past. This is epitomized in the well known statement from Grzelczyk 84“Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.”85 EU citizenship, in other words is a concept with potential for further embellishment and a yet to be fully formulated substance. It is a given that national 77. Case C-192/05 Tas-Hagen and Tas, 2006 ECR I-10451. Tas-Hagen, like almost all of the cases (bar three) examined in this paper, is a preliminary ruling case (in this instance a referral from a Dutch court) which means that ultimate adjudication takes place in the referring court and not at Eouropean Court of Justice level. The suggestion as to ‘success’ of the case here refers to the fact that in Tas-Hagen, the European Court of Justice, for the first time since 1975, when dealing with a wartime based claim, found in favour of the arguments put forward by the people who were involved in war. 79 Case C-386/02 Baldinger, 2004 ECR I-8411. 80 Case C-184/99 Grzelczyk, 2001 ECR I-6193. 81 To slightly paraphrase Thomas Mertens in his discussion of the Eichmann trial in his ‘Memory, Politics and Law. The Eichmann Trial. Hannah Arendt's View on the Jerusalem Court's Competence’ (2005) 6 GLJ 407. 82 "The large print giveth, and the small print taketh away” from the 1976 Tom Waits song, "Step right up", from the "Small Change" album. 83 For the most recent use of EU citizenship in a case with a ‘youth’ dimension see joined cases C-11/06 and C-12/06, Morgan and Bucher, Judgment of 23 October 2007. 84 Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraphs 30 and 31. 85 Cited most recently by the European Court if Justice on 11 September 2007 in Case C-76/05 Schwarz: “It should be recalled, first of all, that the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraphs 30 and 31).” at paragraph 86 of the Judgment. 78. 14. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(21) A Door into the Dark. citizenship harks back to a common history of the state or nation in order to establish a sense of particularized connection with the state. This is not a position endorsed at EU level where the focus is firmly on the future and there have been few institutional attempts to locate a common past for EU citizens. A telling factor in this context is that, curiously, almost all of the cases where judicial advances have been made in the determination and development of the meaning of EU citizenship have been in cases involving, directly or indirectly, young people – students, young job seekers, children….86 This still relatively new legal concept of supranational citizenship seems to belong to youth and to be the preserve of those with bright prospects and not dark pasts. In the midst of the gradual, uncertain emergence of citizenship of the EU, those with small voices from a time before Rome, before EU history began,87 are simply not part of the picture. The way in which the European Court responded in the Baldinger case, for example, is revelatory. In the very person, and case, of Josef Baldinger, the past and future of the EU collide; this young Austrian, fighting for The Reich on the Eastern Front, meets the futuristic concept of supranational citizenship. In this collision, not only does the future not offer any resolution for his past but the judgment in his case determines, explicitly, that citizenship of the EU has no connection with wartime pasts in general. Despite this statement, it is, none the less, significant that citizenship law should be formally connected with those who have experienced war in Europe.88 The National Socialist experiment began with the use, or rather abuse, of citizenship law by the Nuremberg Laws in 1935.89 The steady emergence of citizenship as a subject for debate, consequential to a period of European history when so many perished because of the lack of it, is highly symbolic. A contemporary anecdote reminds us how vital the preservation of a citizenship link is in extremis: after Hurricane Katrina devastated New Orleans in 2005, there was outrage by residents of that city at media designations as of them as ‘refugees’, the convenient casting of them as outsiders by the very use of the term when they were all (tax paying) US citizens.90 National Socialism’s use of 86. For example, cases C-11/06 and C-12/06 Morgan and Bucher, Judgment of 23 October 2007 The European Commission (2007) in European Commission (1958-1972) – History and memories of http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/874&format= an institution: HTML&aged=0&language=EN&guiLanguage=en asserts that the stepping stones to today’s Europe start in 1958. 88 As it happens, the claimants in Tas-Hagen did not in fact see war in Europe as they were living in Indonesia at the time but the point I make is general, especially so as the national legislation which was at issue in their case pertained to the Second World War. 89 The Congress of the National Socialist Workers' Party convened in Nuremburg on September 10, 1935. Among the many items of business on the agenda was the passage of a series of laws designed to define the requirements of citizenship in The Reich, to assure the purity of German blood and German honor and to clarify the position of Jews in the state of The Reich. Three pieces of resultant legislation, passed on September 15 1935, are known as the Nuremberg Laws. The Law for the Protection of German Blood and German Honor, prohibited marriages and extra-marital intercourse between “Jews” and “Germans” and also the employment of “German” females under forty-five in Jewish households. The Reich Citizenship Law, stripped persons not considered to be of German blood of their German citizenship and introduced a distinction between “Reich citizens” and “nationals”. 90 Another US citizenship story but with a connection with the Second World War: Sayville, N.Y., February 23 2007, “A congressman from Long Island wants the United States government to grant honorary citizenship to Anne Frank, at least in part to atone for having denied her family entry in the years before her arrest and deportation to a Nazi concentration camp. The House of Representatives is. 87. EUI WP LAW 2008/11 © 2008 Carole Lyons. 15.

(22) Carole Lyons. citizenship to create ‘outsiders’ therefore resonates deeply when considering the relevance of EU citizenship in cases from that period. Citizenship was used as a legislative and conceptual weapon against unwanted insiders in order to deny and destroy their connection with their state, The Reich. From that detachment from the state flowed, all the more easily, all the other manifold injustices perpetrated thereafter in the name of National Socialism. What follows in this part of the paper is a series of case studies exploring in an in depth fashion how the Luxembourg Court came, eventually, to use EU citizenship directly in relation to the wartime past. On that route towards the recognition of a relationship between citizenship and wartime based claims, the Court was not infrequently confronted with situations which raised the question of the applicability of (the precitizenship) EC fundamental principles such as nationality discrimination and free movement of persons. It is observable in these cases that the judges persistently resisted the application of this ‘higher Community law’ when the facts were grounded in the Second World War. There is a discernible trend towards the ceding of responsibility for the legacy of war to the Member States, with specific statements to this effect from the Court over many years. This is all the more surprising to the observer of EU law given the strident steps taken in mainstream (that is, non war based) free movement and equality law over the same period of time. Wartime cases were seemingly declared immune from, or an exception to, fundamental Community law. The legislative vehicle which generally permitted the setting aside of war cases was Article 4 (4) of Regulation 1408/71.91 This legislative measure has as its purpose the coordination of social security payments between the Member States. However, Article 4 (4) of the Regulation specifically excludes ‘benefit schemes for victims of war or its consequences’. Article 4 (4) of 1408/71, when employed in this manner, is, therefore, an institutionalised preservation of Member State competence over war related payments and it acts, effectively, as a ‘wartime exclusion’ measure. This Regulation has been a dominant force for over 30 years in all of the cases discussed here. Not until 2006 did the Court implicitly concede that the provisions of this Regulation should be read in the light of ‘higher Community law’. It was not until Advocate General Ruiz-Jarabo Colomer’s incisive investigation into the negative impact of Article 4 (4) of 1408/71 in Baldinger, and his resultant call for EU citizenship to be used as barrier to the “injustice” it caused, that a conceptual space was created which allowed for the long term perception of Member State control over the legacy of war to be challenged and eventually eroded. In other words, Mr. Ruiz-Jarabo is the first voice at the Court to implicitly suggest and formulate a European solution to what was obviously a European war but one which had, in the interpretations coming from Luxembourg, reverted to being a purely national matter. The case studies below trace this judicial journey from the 1970’s notions of sovereignty over war through to the illuminating employment of supranational likely to take up the question this year, yet the proposal is not quite as easy and unobjectionable as it sounds. Only six people in history have been granted the honor, and some of Anne Frank’s relatives are not supporting it.” The New York Times, February 23 2007. 91 Article 4 (4) of Regulation 1408/71, “This Regulation shall not apply to social and medical assistance, to benefit schemes for victims of war or its consequences, or to special schemes for civil servants and persons treated as such”. OJ 1971 L 149/2 and English special edition: Series I Chapter 1971(II) p. 416, consolidated version, OJ 1997 L 28/1.. 16. EUI WP LAW 2008/11 © 2008 Carole Lyons.

(23) A Door into the Dark. citizenship in Baldinger and Tas-Hagen. It is a concrete examination of what Dora Kostakopoulou terms “the art of the impossible”.92 This is an exploration of the mediation and working through of national, post-national and supranational powers over the control of the legacy of the Second World War. It is a long story, beginning in 1978 and still unravelling in 2008. A. Paulin Gillard The case of Gillard 93is concerned with the issue of compensation for prisoners of war. Paulin Gillard, a Belgian national (resident at the time of the Court judgment in Nancy, France) was a member of the Belgian armed forces and was imprisoned in Germany for over 60 months during the Second World War, effectively for its entire duration. We learn nothing from the judgment about the circumstances of his imprisonment, nor of its consequences for Gillard.94 This lack of background information is not surprising given the generally quite sparse nature of European Court of Justice decisions, which was even more marked in the early decades of Community judging. None the less, as we will see throughout this paper, this repeated pattern of the lack of any judicial dissection of the precise pasts of applicants with wartime experiences is regrettable. Gillard’s claim relates to the applicability to his pension circumstances of Article L 382 (2) of the (French) Code de la Securité Sociale according to which the pension entitlement of former prisoners of war, whose captivity lasted for at least 54 months, is calculated at a favourable rate (namely 50% of basic wage) when that pension is taken at age 60 or after. In order to benefit from this provision, applicants had to produce evidence of the duration of their captivity in the form of a service record issued by a competent military authority. Gillard had retired at 60 and was in receipt of the standard French old age pension at a rate of 25% of basic wage. His request to benefit from the pension increase, which Article L 382 (2) afforded French prisoners of war, was rejected on the basis that the benefit he claimed was covered by the exclusion of compensation to victims of war and its consequences as provided for in Article 4 (4) of EC Regulation No. 1408/71.95 In other words, the French social security body relied on Article 4 (4) to claim that it was not required to respect the fundamental Community principle of equal treatment of workers when the (social security) benefit claimed was related to the Second World War. The European Court of Justice stated that the determination of benefits to be included or excluded from the ambit of Regulation 1408/71 rested on the particular facts relating to the contested benefit, especially its purpose and the conditions for its grant. In relation to the contested French pension benefit in this case, the Court interpreted its purpose as being “national gratitude for hardships endured between 1939 and 1945 on behalf of. 92. D. Kostakopoulou, ‘European Union Citizenship – Writing the Future’ (2007) 13 ELJ 623-646 at 639. Case 9/78 Directeur régional de la Sécurité sociale de Nancy v Paulin Gillard et Caisse régionale d'assurance maladie du Nord-Est [1978] ECR1661. 94 For a very brief reference to the condition of Belgian prisoners of war see the Avalon Project at Yale Law School: http://www.yale.edu/lawweb/avalon/imt/document/nca_vol4/1514-ps.htm. 95 This provision effectively provides an ‘opt out’ to Member States in relation to the applicability of EC/EU law to wartime related benefit schemes.. 93. EUI WP LAW 2008/11 © 2008 Carole Lyons. 17.

(24) Carole Lyons. France and its Allies.”96 Curiously, the Court does not specifically use or even refer to the words ‘war’ or ‘wartime’ in its judgment (independently of legislative phrases incorporating those words). There is a purely mechanistic and formal use of Regulation 1408/71 here against Paulin Gillard; once the benefit he claimed is interpreted by the Court as having a ‘national gratitude’ objective, then it cannot be classed as a social security benefit under the Regulation and he is, consequently, precluded from claiming the increased pension. The Court does not consider any alternative way in which Community law, particularly the prohibition on nationality discrimination, might have a bearing on this case. Gillard maintained his Belgian nationality but was resident in France and his claim before the referring French court specifically referred to equality of treatment of workers.97 Article 4 (4) of 1408/71, coupled with the Court’s interpretation of the contested benefit, acted as a cut off which prevented Gillard accessing a remedy in an appropriate forum and pushed the matter of ‘war ands its consequences’ firmly outside the doors of the Community’s judicial citadel and subject to domestic control without any interference from Community law. Paulin Gillard specifically availed of the advantages of European integration and moved to work in another Member State and was clearly, therefore, a Community worker who should have benefited from the prohibition on nationality discrimination in order to be treated as equal to French ex-prisoners of war. However, in interpreting the purpose of the contested French benefit as being one for the expression of “national gratitude” the Court firmly designates compensation for war victims as a national matter which trumps Community fundamental principles. In essence, Paulin Gillard did not fight for France so that state, his state of residence but not nationality, according to the European Court of Justice, owed him no form of gratitude or recognition for his wartime experience. B. Gilbert Even In the 1979 case of Gilbert Even,98 another opportunity was given to the European Court of Justice to pronounce on the interpretation of Article 4 (4) of Regulation 1408/71. In doing so, the Court re-asserted its view that compensation or benefit in relation to war time activities is a matter for the Member States in the context of the relationship between the State’s own nationals and the war time service rendered by the latter. There is a very clear statement from the Court in this judgment that Community competence does not arise in the matter of wartime related matters. This preliminary ruling case arose in the context of Even, a French national residing in Belgium, and his legal dispute with the Belgian Pension authorities. Mr. Even was injured in the course of army service on 13 May 1940.99 The Court papers are silent as to the nature of the war service record of Gilbert Even but, given the outcome of the judgment, it is clear that his military service was not performed for Belgium but for France (from which state he was 96. Paragraph 13 of the Judgment. This is, in fact, an inherently discriminatory provision given that Germans and Italians, for example, would automatically be excluded. 97 See further D. Wyatt, ‘Discrimination on Grounds of Nationality: Schemes for the Victims of War or its Consequences’, (1979) 4 ELRev. 369-371. 98 Case 207/78 Gilbert Even v Office national des pensions pour travailleurs salariés (ONPTS) [1979] ECR 2019. 99 It is possible that he was involved in the defence of France on the Western Front against the advance of the 7th Panzer Division on 13 May 1940.. 18. EUI WP LAW 2008/11 © 2008 Carole Lyons.